Legal Ethics Opinion #1542
Extrajudicial Statements Made By Prosecutor
You have presented a hypothetical situation in which a client has
been arrested and charged with the robbery and murder of another.
The prosecutor who will prosecute the case makes the following
statements, reported in two newspapers that are widely
distributed throughout the jurisdiction. Client has not yet had
a preliminary hearing on the robbery and murder charges and has
not yet been indicted for any offense.
In newspaper #1, the prosecutor is quoted as saying: "Defendant
is the one who is alleged to be the shooter... The investigation
is continuing... We expect some other arrests in this case. We
think others were involved and we're looking for them now..."
The prosecutor said that the men followed the victim from the
District of Columbia to a certain neighborhood in the County
before killing him and stealing his car. "It appears he was
spotted somewhere along the way and was followed right into the
cul-de-sac where he was killed," the prosecutor said. The
prosecutor also said that he has not yet decided whether the
defendant will be tried on capital murder charges, which could
carry the death penalty upon conviction. (In a subsequent
article in the same newspaper, he stated he would seek the death
penalty in this case.). The prosecutor called the case "scary".
Further, the prosecutor stated: "It is certainly a particularly
brutal and heartless kind of killing. I've been doing this kind
of stuff for a lot of years and this one is about as heartless
and brutal a kind of case as I've seen." "You realize this kind
of case can happen to anyone," he added.
In newspaper #2, the prosecutor is quoted as saying: "When the
victim got out of the car, he was forced to lie down on the
street, where he was shot in the head at close range. It's a
terrible, terrible case. He was killed really at random. He
didn't know these people. They were just determined to get his
particular car."
You indicate that the defendant is being held in the D.C. jail,
and the prosecutor has stated that he would seek to extradite the
defendant if he does not agree to be transferred to Virginia for
trial.
Finally, you advise that, following a preliminary hearing, the
prosecutor is quoted in a major newspaper as follows: "I really
believe this is the most brutal case I've seen in all the years
I've been a prosecutor. That's the reason I'm going to seek a
capital murder indictment."
You have asked the committee to opine whether, under the facts of
the inquiry, the prosecutor has violated DR 7-106(A), by making
extrajudicial statements which constitute a clear and present
danger of interfering with the fairness of the trial by a jury.
As you have indicated, the appropriate and controlling
Disciplinary Rule related to your inquiry is DR 7-106(A), which
states that a lawyer participating in or associated with the
investigation or the prosecution or the defense of a criminal
matter that may be tried by a jury shall not make or participate
in making an extrajudicial statement that a reasonable person
would expect to be disseminated by means of public communication
that he knows, or should know, constitutes a clear and present
danger of interfering with the fairness of the trial by a jury.
See also EC 7-30.
The committee is of the view that, under the hypothetical facts
you have presented, the determination of whether the
extrajudicial statements cited constitute a clear and present
danger of interfering with the fairness of the trial by a jury
raises a legal question requiring a factual determination beyond
the purview of this committee. However, the committee cautions
that should the appropriate court determine that the
extrajudicial statements did constitute such a danger to a fair
trial, clearly the statements would also be per se violative of
DR 7-l06(A).
Committee Opinion
September 2, 1993